Sunday, April 12, 2009

Check out Cass Sunstein's essay on federalism and republicanism in the March 26th issue of the New York Review of Books. Here's a sample.

To many modern readers, the Federalist Papers seem formal, musty, old, and a bit tired—a little like a national holiday that celebrates events long past but lacks any sense of struggle and excitement, or even a clear message. But under stringent time pressure, starting in October 1787, Alexander Hamilton, James Madison, and John Jay, writing under the name of "Publius," produced the best historical record, by far, of the uniquely American contribution to political thought and practice.

It is important to see that their arguments were a product of a concrete historical drama, involving the fate of an emerging nation that was having an exceedingly difficult time governing itself. But Publius's claims bear not only on American debates of the eighteenth century, but also on those of the nineteenth, twentieth, and twenty-first. They offer lessons for making war and making peace, and for domestic crises of many different kinds. Indeed, they provide guidance for constitutional democracies elsewhere, not least when peace and prosperity are endangered.

Publius's project was to reconceive republicanism—a body of thought with ancient origins in Aristotle and Cicero whose modern forms had been elaborated in different ways by Machiavelli, Rousseau, and Montesquieu. Emphasizing self-rule by the people, republicans insisted on the importance of civic virtue and generally believed that self-government works best in small, homogeneous republics. According to the argument of the Federalist Papers, however, such small republics tend to destroy themselves. The reason lay in the power of factions—well-organized private groups with passions or interests inconsistent with the good of the public as a whole. Publius believed that in a large republic, a heterogeneous public could counteract factional power and serve as a creative force, promoting circumspection and introducing safeguards against bias, error, confusion, and even oppression. (Footnotes omitted)

I have my doubts that Sunstein's succeeds in establishing the compatibility, let alone the synthesis, of federalism and republicanism. Federalists were suspicious of the people. John Adams feared elections and Fisher Ames believed that "a republic which differs more widely from a democracy than a democracy from a despotism. The rigours of a despotism often oppress only a few, but it is the very essence and nature of a democracy, for a faction claiming to oppress a minority, and that minority the chief owners of the property and truest lovers of their country." This doesn't lend itself to interpetation as federalism embracing deliberative democracy. By contast Republicans feared government. The reconciliation between these two paradigms or attitudes has never been achieved. Moveover, contrary to Sunstein's claim that deliberative democracy preserves accountability, it's not clear that he takes accountability seriously at all. According to Sunstein, the federalist system of checks and balances is designed to promote the republican value of deliberative democracy. In such a system, judicial review is designed to ensure that We the People would remain superior to [their] rules." But this raises a problem endemic to all judicial constitutionalists. Both empirically and conceptually, the claim that the Court protects the people is dubious. In short, who protects We the People, their rulers, and the Constitution from incursions of ultra vires judicial decisions? Judicial constitutionalists rarely, if ever, provide plausible reasons in support of the Court's lack of accountability. Oh yes, judicial constitutionalists recite a litany of implausible reasons, such as, the Court's impartiality, its vital role in protection individual rights, and so forth. But none of these reasons succeed in explaining how the Court can work its will and at the same time be constrained by and accountable to the will of We the People. The design and application of American constitutionalism has created what is usefully called a "dead-end republicanism," a polity where public rhetoric valorizes self-rule, but whose reality creates various structures such as judicial supremacy, where self-rule is checked by an unchecked branch of government. No self-respecting republicanism can tolerate such a government so removed from self-rule

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